[Plaintiff, Appellee] Plaintiff (Attorney: Jipyong LLC, Attorneys Yang Ji-yun and 2 others)
[Defendant, Appellant] Chairman of the National Labor Relations Commission
[Intervenor for Defendant, Appellant] ○○○ Corporation and 1 other (Attorneys: Bae, Kim & Lee LLC (서정), Attorneys Park Shin-hyun and 3 others)
[Lower Court Judgment] Seoul High Court Judgment 2022Nu44493, decided June 8, 2023
[Order]
The judgment of the court below is reversed, and the case is remanded to the Seoul High Court.
[Reasoning] The grounds of appeal raised by the Defendant and the Intervenors for the Defendant (including the supplemental brief on grounds of appeal submitted after the filing period, to the extent it supplements the grounds of appeal) are examined together.
1. Determination of the Governing Law
The court below determined, based on the circumstances stated in its judgment, that with respect to the employment relationship at issue between the Plaintiff and Intervenor for Defendant ○○○ Corporation (hereinafter “Intervenor Headquarters”), the Labor Standards Act (근로기준법) of the Republic of Korea applies, rather than the law of the State of Delaware, United States. Examining the reasoning of the judgment below in light of the relevant legal principles and the record, the conclusion of the court below that the Labor Standards Act of the Republic of Korea applies to the employment relationship at issue is justified, and there is no error affecting the judgment, such as a misunderstanding of the legal principles regarding the determination of governing law in international employment relationships, as alleged in the grounds of appeal.
2. The Standard for Determining a "Business or Workplace That Regularly Employs Five or More Workers" under Article 11(1) of the Labor Standards Act in International Employment Relationships, and the Method for Calculating the Number of Regularly Employed Workers
A. Relevant Legal Principles
Article 11 of the Labor Standards Act provides that the Labor Standards Act shall apply to all businesses or workplaces that regularly employ five or more workers (Paragraph 1), and that for businesses or workplaces regularly employing four or fewer workers, some provisions of the Act may be applied as prescribed by Presidential Decree (Paragraph 2), thereby differentiating the scope of application of the Labor Standards Act based on the "number of regularly employed workers." In an international employment relationship where a foreign company conducts business activities within Korea and employs workers, whether it falls under a "business or workplace that regularly employs five or more workers," to which the Labor Standards Act applies in full, must in principle be determined based on the "number of workers employed within Korea." The reasons are as follows.
1) The "business or workplace" under Article 11 of the Labor Standards Act is the unit for the application of the Labor Standards Act, and serves as the basic unit for regulating working conditions, for the exchange of opinions and consultation among workers, and for determining the justifiability of dismissals, including dismissals for managerial reasons. Accordingly, a single business or workplace can be constituted only where it can be regarded as a substantially identical economic and social unit of activity to which the various regulations governing the employment relationship can be uniformly applied. Therefore, it is reasonable to interpret the "business or workplace" under Article 11 of the Labor Standards Act as referring to a business or workplace located within the Republic of Korea.
2) With respect to workers employed by a foreign company outside Korea, absent special circumstances, only the labor-related laws and regulations of the foreign country apply. Therefore, it is not permissible to determine whether a business or workplace falls under "a business or workplace that regularly employs five or more workers" under Article 11(1) of the Labor Standards Act by aggregating the number of workers employed abroad, to whom the Labor Standards Act of the Republic of Korea does not apply.
B. Determination in This Case
According to the reasoning of the judgment below and the record, it can be seen that Intervenor Headquarters, a corporation headquartered in the United States, employed the Plaintiff as its only worker in Korea for the purpose of handling the acquisition of new projects in the Asia-Pacific region.
Examining the above facts in light of the legal principles set forth above, since the number of workers regularly employed by Intervenor Headquarters within Korea is only one, even if the number of regularly employed workers becomes five or more when the number of workers employed abroad is aggregated, Intervenor Headquarters cannot be deemed to fall under a business or workplace that regularly employs five or more workers as provided in Article 11(1) of the Labor Standards Act.
Nevertheless, the court below determined, as stated in its judgment, that Intervenor Headquarters falls under a business or workplace that regularly employs five or more workers, as a result of aggregating the number of domestic workers with the number of foreign workers in calculating the number of regularly employed workers. The judgment below erred by misunderstanding the legal principles regarding the standard for determining a "business or workplace that regularly employs five or more workers" under Article 11(1) of the Labor Standards Act in international employment relationships and the method of calculating the number of regularly employed workers, and this error affected the judgment.
3. Conclusion
Without examining the remaining grounds of appeal, the judgment of the court below is reversed, and the case is remanded to the court below for further examination and determination. This judgment is rendered in accordance with the unanimous opinion of the participating Justices, as stated in the Order.
Justice Seo Kyung-hwan (Presiding Justice), Noh Tae-ak, Shin Suk-hee, Noh Kyung-pil (Justice in Charge)